IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-11396
Summary Calendar
CLIFFORD MEDLEY,
Plaintiff-Appellant,
versus
CITY OF AMARILLO, TX; POTTER COUNTY, TEXAS;
VARIOUS UNKNOWN NAMED AGENTS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:97-CV-217
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October 5, 1999
Before SMITH, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Clifford Medley, Texas prisoner # 824224, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 civil rights
action as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)
because it was time-barred. Medley argues that the district
court erred in dismissing his complaint on the basis of the
statute of limitations because it is an affirmative defense which
should be raised by the defendants after service of the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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complaint. Although the defense of limitations is an affirmative
defense, the district court may raise the defense sua sponte in
making a § 1915(d) (now § 1915(e)(2)(B)(i)) frivolity
determination. Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir.
1993).
Medley argues that he filed his original complaint naming
the unknown agents as defendants before the two-year period, that
the Clerk erred in failing to file and docket this complaint, and
that when he filed the complaint form which the Clerk had mailed
to him, he did not intend to file it as an amended complaint with
the effect of superseding his original complaint. Even if all of
this is accepted as true, the district court correctly applied
Jacobsen v. Osborne, 133 F.3d 315 (5th Cir. 1998) in holding that
any amendment after the two-year period to substitute the names
of the unknown defendants would not relate back to the original
complaint.
Even if Medley’s claims against the City and County are not
time-barred, his claims are frivolous because his allegations
against these defendants are fanciful, delusional, and
conclusionary. "To establish county/municipality liability under
§ 1983 . . . a plaintiff must demonstrate a policy or custom
which caused the constitutional deprivation." Colle v. Brazos
County, Tex., 981 F.2d 237, 244 (5th Cir. 1993). Medley’s
allegations of “policy” are conclusional and are thrown into his
complaints and other pleadings as nothing more than a device to
attempt to establish respondeat superior liability. Medley
No. 98-11396
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states in his brief that if he has failed to demonstrate custom
or policies he should be afforded an opportunity to amend his
complaint. Medley was given numerous opportunities to amend his
complaint and to make clear his claims against the defendants,
and he failed to do so except in the most conclusionary terms.
Further, his allegations regarding the officers’ and
deputies’ alleged use of devices which detached his “Achilles
heels” at a distance of 30 to 40 feet, and the alleged use of an
electronic device to scan his neck for a transponder placed under
his skin for identification purposes, are fanciful and delusional
and are subject to dismissal as frivolous. Denton v. Hernandez,
504 U.S. 25, 32-33 (1992).
Medley argues that the district court’s handling of his case
was erroneous in just about every respect. He lists a series of
alleged errors in the district court’s denial of various motions
and asks this court to review the district court’s actions for
abuse of discretion. He states that he cannot brief all of the
errors and he asks the court to review the record and enter the
judgments appropriately.
This Court has no procedure for plenary review of the
record. Pro se briefs must be liberally construed. Haines v.
Kerner, 404 U.S. 519, 520 (1972). Arguments, however, must be
briefed to be preserved. Brinkmann v. Abner, 813 F.2d 744, 748
(5th Cir. 1987); see Fed. R. App. P. 28(a)(9).
Medley argues that the district court abused its discretion
in denying him an extension of time to file his objections.
However, Medley states that “[e]ven if the objections were not
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heard, they were made various times prior to the drafting of the
magistrate judge’s Report and Recommendation. Plain errors are
present throughout the record.” Again, he asks this court “to
review the entire record for error of abuse of discretion and
violations of due process as well as for contrary to law.” He
does not state what his objections were or attempt to show how
they could have changed the outcome of the case. This issue is
inadequately briefed. Brinkmann, 813 F.2d at 748.
Medley argues that the district court abused its discretion
in not ruling on his motion for appointment of counsel filed on
April 20, 1998, and that the court should have granted it. The
district court denied his motion in its order of adoption. The
district court did not abuse its discretion. Ulmer v.
Chancellor, 691 F.2d 209, 213 (5th Cir. 1982).
Medley’s appeal is without arguable merit and is frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Because the appeal is frivolous, it should be dismissed. See 5th
Cir. R. 42.2. The dismissal of this appeal as frivolous counts
as a strike for purposes of 28 U.S.C. § 1915(g). We caution
Medley that once he accumulates three strikes, he may not proceed
IFP in any civil action or appeal filed while he is incarcerated
or detained in any facility unless he is under imminent danger of
serious physical injury. See 28 U.S.C. § 1915(g).
DISMISSED AS FRIVOLOUS.